Steven D Young v. William Muniz

Filing 15

ORDER by Magistrate Judge Kenly Kiya Kato, 1. A Kelly stay is GRANTED. This action -- now containing only the exhausted Claim 1 -- is hereby stayed pending exhaustion of Petitioner's state court remedies on other grounds and/or further order o f this Court. 2. Beginning July 5, 2016, and every ninety (90) days thereafter, Petitioner shall file a Status Report with the Court, addressing the status of Petitioner's exhaustion efforts in state court. Petitioner must provide the case num ber of the pending state court proceedings, if available. Respondent may file a status report within fourteen (14) days following Petitioner's filing, if Respondent wishes to advise the Court of any developments not reported by Petitioner. 3. Within thirty (30) days after any decision by the state court on Petitioners habeas petition, Petitioner shall advise this Court of the decision. Further, if Petitioner abandons his efforts to exhaust his state court remedies, he shall immediately advise this Court. 4. Petitioner is cautioned that if he fails to act diligently in seeking to exhaust his state court remedies or fails to act within the time frames discussed above, the Court may vacate the stay and prohibit Petitioner from raising any new claims in this action. (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 15-9840-VBF (KK)

Date: April 5, 2016

Title: Steven D. Young v. William Muniz

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Petitioner(s):

Attorney(s) Present for Respondent(s):

None Present

None Present

Proceedings:

Order Staying this Action Pursuant to Kelly v. Small, 315 F.3d 1063 (9th
Cir. 2003)
I.
BACKGROUND

On December 22, 2015, Salinas Valley State Prison inmate Steven D. Young
(“Petitioner”) constructively filed1 a pro se First Amended Petition (“FAP”) for Writ of Habeas
Corpus by a Person in State Custody pursuant to Title 28 of the United States Code, section
2254. See Dkt. 5. The FAP challenged Petitioner’s 2014 conviction in the Los Angeles County
Superior Court based on two claims: (1) miscalculation of custody credits (“Claim 1”), which he
raised on direct appeal to the California Court of Appeal and the California Supreme Court; and
(2) trial counsel rendered constitutionally ineffective assistance of counsel (“Claim 2”), which
he admittedly did not present to any state court by direct appeal or otherwise. See id. at 5-6.2
1

Under the “prison mailbox rule,” when a pro se prisoner gives prison authorities a
document to mail to a court, the court deems the document to be constructively filed on the date
it is signed. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted).
Here, Petitioner signed the FAP on December 22, 2015, see ECF Docket No. (“Dkt.”) 5, FAP,
so the Court deems the FAP to have been filed on that date.
2

The Court refers to the pages of Petitioner’s filings as if he consecutively numbered

them.
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On February 10, 2016, Petitioner constructively filed a Request for Stay. Dkt. 12, Request
for Stay. Petitioner failed to specify whether he requested a stay and abeyance pursuant to
Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005) (“Rhines stay”) or
Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey,
481 F.3d 1143 (9th Cir. 2007) (“Kelly stay”). Id.
On March 8, 2016, the Court denied Petitioner’s Request for Stay insofar as it sought a
Rhines stay and conditionally granted a Kelly stay. Dkt. 13, Mar. 8, 2016 Order. The Court
allowed Petitioner to file a Second Amended Petition (“SAP”) including only Claim 1 and
deleting Claim 2. On March 17, 2016, Petitioner constructively filed a SAP raising only Claim 1.
Dkt. 14, SAP.
II.
DISCUSSION
As set forth in its March 8, 2016 Order, the Court now finds it is appropriate to impose
the Kelly stay. The Court stays and holds in abeyance the fully exhausted SAP (containing only
Claim 1), and allows Petitioner the opportunity to exhaust the deleted Claim 2 (ineffective
assistance of trial counsel) in state court.
Petitioner is cautioned, however, that while a Kelly stay does not require a showing of
good cause, it requires compliance with the one-year statute of limitations set forth in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2244(d)(1). “A
petitioner seeking to use the Kelly procedure will be able to amend his unexhausted claims back
into his federal petition once he has exhausted them only if those claims are determined to be
timely.” King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009). After expiration of the limitation
period, “a petitioner may amend a new claim into a pending federal habeas petition . . . only if the
new claim shares a ‘common core of operative facts’ with the claims in the pending petition; a
new claim does not ‘relate back’ . . . simply because it arises from the ‘same trial, conviction, or
sentence.’” Id. at 1141 (internal citations omitted).
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III.
ORDER
Accordingly, IT IS ORDERED:
1. A Kelly stay is GRANTED. This action -- now containing only the exhausted Claim 1 -is hereby stayed pending exhaustion of Petitioner’s state court remedies on other grounds
and/or further order of this Court.
2. Beginning July 5, 2016, and every ninety (90) days thereafter, Petitioner shall file a
“Status Report” with the Court, addressing the status of Petitioner’s exhaustion efforts
in state court. Petitioner must provide the case number of the pending state court
proceedings, if available. Respondent may file a status report within fourteen (14) days
following Petitioner’s filing, if Respondent wishes to advise the Court of any
developments not reported by Petitioner.
3. Within thirty (30) days after any decision by the state court on Petitioner’s habeas
petition, Petitioner shall advise this Court of the decision. Further, if Petitioner abandons
his efforts to exhaust his state court remedies, he shall immediately advise this Court.
4. Petitioner is cautioned that if he fails to act diligently in seeking to exhaust his state court
remedies or fails to act within the time frames discussed above, the Court may vacate the
stay and prohibit Petitioner from raising any new claims in this action.
IT IS SO ORDERED.

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